Author: Chhavishree Somani.
TABLE OF CONTENTS
JUSTICE INDU MALHOTRA’S JUDGMENT.
CRITICAL ANALYSIS OF JUSTICE MALHOTRA’S OPINION..
INTRODUCTION
An instant writ petition was filed by an association of lawyers under Article 32 of the Indian Constitution against the Government of Kerala, Devaswom Board of Travancore, Chief Thanthri of Sabarimala Temple and the District Magistrate of Pathanamthitta in order to allow the entry of women between the age of 10 years to 50 years in the Sabarimala temple in Kerala. These women were denied entry into the temple under Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965, framed in exercise of the powers conferred by Section 4 of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965.
The Sabarimala Temple, of Lord Ayyappa in Kerala, which is visited by more than twenty million travellers and enthusiasts consistently. According to a centuries-old convention of this temple, and the ‘acharas’, convictions and traditions pursued by this Temple, ladies between the age of 10 to 50 years are not allowed to enter this Temple.
RESPONDENTS ARGUMENT
The respondents submitted the following contentions and arguments to support the said practice:
- An essential and integral part of the customs and usages protected under Articles 25 and 26 of the Constitution:
“It was asserted that the practice of restricting the entry of women between the ages of 10 to 50 years is an essential and integral part of the customs and usages of the Temple, which is protected under Articles 25 and 26 of the Constitution. Being a religious custom, it is also immune from challenge under other provisions of Part III of the Constitution in light of the ruling of this Court in Riju Prasad Sharma & Ors. v. State of Assam & Ors.”[1]
- The concept of ‘Vratham’:
“This is attributable to the manifestation of the deity at the Sabarimala Temple which is in the form of a ‘Naishtik Bramhachari’, who practises strict penance, and the severest form of celibacy. The mode and manner of worship at this Temple as revealed by the Lord himself is chronicled in the ‘Sthal Purana’ i.e. the ‘Bhuthanatha Geetha
It is believed that Lord Ayyappa himself undertook the 41-day ‘Vratham’ before he went to Sabarimala Temple to merge with the deity. The whole process of the pilgrimage undertaken by a pilgrim is to replicate the journey of Lord Ayyappa. When a pilgrim undertakes the ‘Vratham’, the pilgrim separates himself from the women-folk in the house, including his wife, daughter, or other female members in the family.”[2]
- Reasonable Classification:
“The exclusion of women in this Temple is not absolute or universal. It is limited to a particular age group in one particular temple, with the view to preserve the character of the deity. the restriction on entry of women is a part of the essential practise of this Temple, and the pilgrimage undertaken. It is clearly intended to keep the pilgrims away from any distraction related to sex, as the dominant objective of the pilgrimage is the creation of circumstances in all respects for the successful practise of the spiritual self-discipline.”[3]
- Religious Denomination:
“It was categorically asserted by the Respondents that the devotees of Lord Ayyappa constitute a religious denomination, (in Article 26 of the Constitution) who follow the ‘Ayyappan Dharma’, where all male devotees are called ‘Ayyappans’ and all female devotees below 10 years and above 50 years of age are called ‘Malikapurams’. A devotee has to abide by the customs and usages of this Temple, if he is to mount the ‘pathinettu padikal’ and enter the Sabarimala Temple. This set of beliefs and faiths of the ‘Ayyappaswamis’, and the organization of the worshippers of Lord Ayyappa constitute a distinct religious denomination, having distinct practises.”[4]
MAJORITY JUDGES: GROUNDS
The majority of judges ruled in the favour of the petitioners and therefore allowed the entry of all women of all ages into the Sabarimala temple. They were of the opinion that this practice was discriminatory and therefore should not be allowed to prevail any further.
“The dualism that persists in religion by glorifying and venerating women as goddesses on one hand and by imposing rigorous sanctions on the other hand in matters of devotion has to be abandoned……Any relationship with the Creator is a transcendental one crossing all socially created artificial barriers and not a negotiated relationship bound by terms and conditions. Such a relationship and expression of devotion cannot be circumscribed by dogmatic notions of biological or physiological factors arising out of rigid socio-cultural attitudes which do not meet the constitutionally prescribed tests.”[5]
They delivered the said judgment bases on majorly the following grounds:
- Religious Denomination:
“In view of the law laid down by this Court in Shirur Mutt and S.P. Mittal , the devotees of Lord Ayyappa do not constitute a separate religious denomination. They do not have common religious tenets peculiar to themselves, which they regard as conducive to their spiritual well-being, other than those which are common to the Hindu religion. Therefore, the devotees of 92 Lord Ayyappa are exclusively Hindus and do not constitute a separate religious denomination.”[6]
- Neither an essential nor an integral part:
“In view of the law laid down by this Court in the second Ananda Marga case, the exclusionary practice being 94 followed at the Sabarimala Temple cannot be designated as one, the non-observance of which will change or alter the nature of Hindu religion. Besides, the exclusionary practice has not been observed with unhindered continuity as the Devaswom Board had accepted before the High Court that female worshippers of the age group of 10 to 50 years used to visit the temple and conducted poojas in every month for five days for the first rice feeding ceremony of their children”.[7]
- The proviso to Section 4(1):
“Proviso to Section 4(1) creates an exception to the effect that 95 the regulations/rules made under Section 4(1) shall not discriminate, in any manner whatsoever, against any Hindu on the ground that he/she belongs to a particular section or class.”[8]
- Applicability of Article 17 of the Constitution:
“The social exclusion of women, based on menstrual status, is a form of untouchability which is an anathema to constitutional values. Notions of “purity and pollution”, which stigmatize individuals, have no place in a constitutional order.”[9]
- Article 25: Right to freely Practice Religion:
“Rule 3(b) of the 1965 Rules violates the right of Hindu women to freely practise their religion and exhibit their devotion towards Lord Ayyappa. This denial denudes them of their right to worship. The right to practise religion under Article 25(1) is equally available to both men and women of all age groups professing the same religion.” [10]
JUSTICE INDU MALHOTRA’S JUDGMENT
Justice Indu Malhotra gave a separate and dissenting judgment in this case. She accepted the arguments of the Respondents and delivered her judgment in their favour. The Summary of her judgment is as follows:
“(i) The Writ Petition does not deserve to be entertained for want of standing. The grievances raised are non-justiciable at the behest of the Petitioners and Intervenors involved herein.
(ii) The equality doctrine enshrined under Article 14 does not override the Fundamental Right guaranteed by Article 25 to every individual to freely profess, practise and propagate their faith, in accordance with the tenets of their religion.
(iii) Constitutional Morality in a secular polity would imply the harmonisation of the Fundamental Rights, which include the right of every individual, religious denomination, or sect, to practise their faith and belief in accordance with the tenets of their religion, irrespective of whether the practise is rational or logical.
(iv) The Respondents and the Intervenors have made out a plausible case that the Ayyappans or worshippers of the Sabarimala Temple satisfy the requirements of being a religious denomination, or sect thereof, which is entitled to the protection provided by Article 26. This is a mixed question of fact and law which ought to be decided before a competent court of civil jurisdiction.
(v) The limited restriction on the entry of women during the notified age group does not fall within the purview of Article 17 of the Constitution. 75
(vi) Rule 3(b) of the 1965 Rules is not ultra vires Section 3 of the 1965 Act, since the proviso carves out an exception in the case of public worship in a temple for the benefit of any religious denomination or sect thereof, to manage their affairs in matters of religion. 17. In light of the aforesaid discussion and analysis, the Writ Petition cannot be entertained on the grounds enumerated hereinabove”[11].
CRITICAL ANALYSIS OF JUSTICE MALHOTRA’S OPINION:
In my opinion, with all due respect, I disagree with the dissenting opinion of Justice Indu Malhotra, in the Sabarimala temple case. According to her, it was an issue involving the religious sentiments and practices of the people and the court should not interfere with it. But when we look at the view taken by the court in other similar cases like the Shayara Bano v. Union of India[12] judgment wherein the practice of ‘Instant Triple Talaq’ was declared to be unconstitutional, it becomes quite lucid that the Fundamental Rights prevail over other customs and practices because they are basic rights guaranteed to all the citizens of the country by the Constitution of India and cannot be taken away by such customs.
“Given the fact that Triple Talaq is instant and irrevocable, it is obvious that any attempt at reconciliation between the husband and wife by two arbiters from their families, which is essential to save the marital tie, cannot ever take place. Also, as understood by the Privy Council in Rashid Ahmad, such Triple Talaq is valid even if it is not for any reasonable cause, which view of the law no longer holds good after Shamim Ara. This being the case, it is clear that this form of Talaq is manifestly arbitrary in the sense that the marital tie can be broken capriciously and whimsically by a Muslim man without any attempt at reconciliation so as to save it. This form of Talaq must, therefore, be held to be violative of the fundamental right contained under Article 14 of the Constitution of India. In our opinion, therefore, the 1937 Act, insofar as it seeks to recognize and enforce Triple Talaq, is within the meaning of the expression “laws in force” in Article 13(1) and must be struck down as being void to the extent that it recognizes and enforces Triple Talaq.”
While we strive to abolish Sati, Untouchability and many other discriminatory practices prevailing in the society to ensure equal treatment to all, such customs and practices, that make unreasonable classification between two classes of citizens, should also be abolished in order to provide equal rights to all citizens and strengthen gender equality. The practice prevailing in the Sabarimala temple of not allowing women between the age of 10-50 years is based upon a myth and therefore is unjust and baseless. Everybody has an equal Right to Pray and the patriarchy prevailing in the society should not be given the power to infringe this right. Thus, I agree with the judgment of the majority judges in this case and support every ground on which their this judgment is based upon.
[1] Indian Young Lawyers Assn. v. State of Kerala, AIR 2018 SC 1690.
[2] Ibid.
[3] Indian Young Lawyers Association, supra note 1.
[4] Ibid.
[5] Ibid.
[6] Ibid.
[7] Indian Young Lawyers Association, supra note 1.
[8] Ibid.
[9] Ibid.
[10] Ibid.
[11] Indian Young Lawyers Association, supra note 1.
[12] Shayara Bano v. Union of India, (2017) 9 SCC 1.
About the Author: Chhavishree is a 2017-22 batch student at Gujarat National Law University, Gandhinagar.
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